Exhibit 10.9


 


NONCOMPETITION
AGREEMENT


 


THIS NONCOMPETITION AGREEMENT (the “Agreement”) is made as of December
18, 2009 (the “Effective Date”)
by and between Primoris Services Corporation, a Delaware corporation with
offices in several States, including the State of Texas (“Buyer”), and Mike
Killgore, an individual and employee of Company (as defined herein) that has
offices in several States, including the State of Texas (“Seller”).


 


R E C I T A L S


 


A.            Buyer and Seller are parties to a
Membership Interest Purchase Agreement dated  as
of  even date herewith (the “Purchase
Agreement”), pursuant to which Buyer is acquiring all of the
membership interests of James Construction Group, L.L.C., a Florida limited
liability company (the “Company”). 
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.


 


B.            Seller beneficially owns a substantial
percentage of the equity interests of the Company and, as a result, Seller will
derive substantial financial benefit from the transactions contemplated by the
Purchase Agreement.


 


C.            Following the consummation of
the transactions contemplated by the Purchase Agreement, Buyer will engage in a business that
provides site development, heavy civil construction, infrastructure
construction projects, including highways and bridges, construction of
industrial facilities, equipment installation, storages facilities, process
piping, structural steel and maintenance services (the “Business”).


 


D.            It is a condition of Buyer’s obligations
to consummate the transactions contemplated by the Purchase Agreement that
Seller execute and deliver to Buyer a noncompetition agreement incorporating
the terms and conditions set forth herein.


 


NOW, THEREFORE, in consideration of the covenants and
agreements contained herein and in the Purchase Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:


 


1.             Agreement Not To Compete.


 


(a)           In order to protect the business of Buyer
and any of its Affiliates (as defined below), commencing on the Effective Date
and for a period of two (2) years after the date on which either Seller
voluntarily terminates his employment with the Company or Seller is terminated
by the Company for cause, as “Cause” is defined in the Employment Agreement by
and between Company and Seller dated of even date herewith (the end of such two
(2) year period being hereinafter referred to as the “Termination Date”):


 


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(i)            Seller will not, within the following
described Louisiana Parishes, and the States of Texas, Florida, Mississippi,
Arkansas, Alabama and Georgia (the “Territory”), engage in, provide
consulting services to, be employed by or have any interest in (whether as a
proprietor, partner, director, officer, employee or stockholder) any
corporation, general or limited partnership, association, limited liability
company, sole proprietorship, trust or other entity or organization, other than
Buyer or any of its Affiliates, which is engaged in a business that directly
competes with the Business


 


PARISHES IN THE
STATE OF LOUISIANA


 


	
  Acadia

  	
   

  	
  East Feliciana

  	
   

  	
  Ouachita

  	
   

  	
  Terrebonne

  
	
  Allen

  	
   

  	
  Evangeline

  	
   

  	
  Plaquemines

  	
   

  	
  Union

  
	
  Ascension

  	
   

  	
  Franklin

  	
   

  	
  Point Coupee

  	
   

  	
  Vermillion

  
	
  Assumption

  	
   

  	
  Grant

  	
   

  	
  Rapides

  	
   

  	
  Vernon

  
	
  Avoyelles

  	
   

  	
  Iberia

  	
   

  	
  Red River

  	
   

  	
  Washington

  
	
  Beauregard

  	
   

  	
  Iberville

  	
   

  	
  Richland

  	
   

  	
  Webster

  
	
  Bienville

  	
   

  	
  Jackson

  	
   

  	
  Sabine

  	
   

  	
  West Baton Rouge

  
	
  Bossier

  	
   

  	
  Jefferson

  	
   

  	
  St. Bernard

  	
   

  	
  West Carroll

  
	
  Caddo

  	
   

  	
  Jefferson Davis

  	
   

  	
  St. Charles

  	
   

  	
  West Feliciana

  
	
  Calcasieu

  	
   

  	
  Lafayette

  	
   

  	
  St. Helena

  	
   

  	
  Winn

  
	
  Caldwell

  	
   

  	
  Lafourche

  	
   

  	
  St. James

  	
   

  	
   

  
	
  Cameron

  	
   

  	
  Lasalle

  	
   

  	
  St. John the Baptist

  	
   

  	
   

  
	
  Catahoula

  	
   

  	
  Lincoln

  	
   

  	
  St. Landry

  	
   

  	
   

  
	
  Claiborne

  	
   

  	
  Livingston

  	
   

  	
  St. Martin

  	
   

  	
   

  
	
  Concordia

  	
   

  	
  Madison

  	
   

  	
  St. Mary

  	
   

  	
   

  
	
  De Soto

  	
   

  	
  Morehouse

  	
   

  	
  St. Tammany

  	
   

  	
   

  
	
  East Baton Rouge

  	
   

  	
  Natchitoches

  	
   

  	
  Tangipahoa

  	
   

  	
   

  
	
  East Carroll

  	
   

  	
  Orleans

  	
   

  	
  Tensas

  	
   

  	
   

  



 


; and


 


(ii)           Seller will not, directly or indirectly, at any time
during the term of this Agreement (from the Effective Date through the
Termination Date): (A) employ, or permit any company or business directly
or indirectly controlled by Seller to employ, any person who is employed by
Buyer or any entity controlling, controlled by or under common control with
Buyer (an “Affiliate”); (B) interfere
with or attempt to disrupt the relationship, contractual or otherwise, between
Buyer or any of its Affiliates and any of their employees or consultants; (C) solicit
or in any manner seek to induce any employee or consultant of Buyer or any of
its Affiliates to terminate his or her employment or engagement with Buyer or
any of its Affiliates; or (D) within the Territory, solicit any customers
of Buyer or any of its Affiliates unless such solicitation is not related to
the Business.


 


(b)           Notwithstanding Section 1(a) of
this Agreement, Seller shall not be precluded from purchasing or owning stock
in a publicly-held corporation if Seller’s holdings are less than two percent (2%) of the outstanding
capital stock of such corporation and will not be precluded from owning an
interest in Buyer.


 


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2.             Acknowledgments of Seller.  Seller hereby acknowledges and agrees
that:


 


(a)           this Agreement is necessary for the
protection of the legitimate business interests of Buyer and its Affiliates;


 


(b)           the restrictions contained in this
Agreement regarding geographical scope, length of term and types of activities
restricted are reasonable;


 


(c)           the execution and delivery of this
Agreement is a mandatory condition precedent to the consummation by Buyer of
the transactions provided for in the Purchase Agreement;


 


(d)           Seller has no intention of competing with
Buyer or any of its Affiliates with respect to the Business within the
limitations set forth above; and


 


(e)           as an owner of the Company and through
his ownership of the Company, Seller has received, either directly or
indirectly, adequate and valuable consideration for entering into this
Agreement.


 


3.             Extension; Equitable
Relief; Fees and Expenses.


 


(a)           If Seller is determined by a court of
competent jurisdiction to have violated the provisions of Section 1
hereinabove, the term described therein will be extended by that number of days
which is equal to the aggregate number of days during which, at any time,
Seller committed any such violation.


 


(b)           Seller stipulates and agrees that any
breach of this Agreement by Seller will result in immediate and irreparable
harm to Buyer and its Affiliates, the amount of which will be extremely
difficult to ascertain, and that Buyer could not be reasonably or adequately
compensated by damages in an action at law. 
For these reasons, Buyer or any of its Affiliates shall have the right
to obtain such preliminary, temporary or permanent mandatory or restraining
injunctions, orders or decrees as may be necessary to protect Buyer or any of
its Affiliates against, or on account of, any breach by Seller of the
provisions of Section 1(a) of this Agreement without the proof
of any actual damage caused to Buyer or any of its Affiliates.  Such right to equitable relief is in addition
to all other legal remedies Buyer or any of its Affiliates may have to protect
its rights.


 


(c)           Each party shall bear its own attorneys’
fees and expenses in any suit or proceeding initiated in connection with this
Agreement.


 


4.             Severability. 
The covenants, provisions and paragraphs of this Agreement are
severable.  In the event that any portion
of this Agreement is held to be illegal or unenforceable, in whole or in part,
the same will not affect any other portion of this Agreement, and the remaining
covenants, provisions and paragraphs or portions thereof, to the extent
enforceable, shall, nevertheless, be binding and enforceable.  In furtherance and not in limitation of the
foregoing, if any durational or geographic restriction or restriction on
business activities covered under this Agreement shall be found by any court of
competent jurisdiction to be overly-broad, and thus illegal or unenforceable,
Seller and Buyer intend that such court will enforce this Agreement in any less
broad manner the court may find appropriate by construing such overly-


 


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broad provisions to cover only that duration, geographic area or
business activities which may be enforceable. 
The parties expressly agree that this Agreement shall be given the construction
that renders its provisions valid and enforceable to the maximum extent
permitted by law and/or equity.


 


5.             Amendments. 
No supplement, modification, amendment or waiver of the terms of this
Agreement shall be binding on the parties hereto unless executed in writing by
the party to be bound thereby.  No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provisions hereof (whether or not similar),
nor shall such waiver constitute a continuing waiver unless otherwise expressly
provided.  Any failure to insist upon
strict compliance with any of the terms and conditions of this Agreement shall
not be deemed a waiver of any such terms or conditions.


 


6.             Successors In Interest. 
This Agreement shall be binding upon and shall inure to the benefit of
the successors, assigns, estates, heirs and personal representatives of the
parties hereto (provided that the restrictions themselves shall not apply to
the successors, assigns, estates, heirs and personal representatives of
Seller).  Neither party may assign his or
its rights or obligations hereunder without the prior written consent of the
other party hereto.  Notwithstanding the
foregoing, Buyer may assign its rights hereunder to any Affiliate or to any
successor in interest to the entire business of Buyer or to substantially all
of the assets of Buyer.


 


7.             Governing Law. 
This Agreement shall be governed by and shall be construed in accordance
with the laws of the State of Delaware without regard to the conflicts or
choice of law provisions of any jurisdiction.


 


8.             Consent to Jurisdiction.  Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court sitting in the Southern 
District of Texas, and the courts of the State of Texas located in
Harris County for the purposes of any suit, action or proceeding arising out of
or relating to this Agreement, and (b) hereby waives, and agrees not to
assert in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or proceeding is improper. Each party hereto consents to process being
served in any such suit, action or proceeding by mailing a copy thereof via
certified mail, return receipt requested, to such party at the address in
effect for notices to it under Section 9 and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 8 shall affect or limit any right
to serve process in any other manner permitted by law.


 


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9.             Notices. 
All notices or other communications given pursuant to this Agreement
shall be given in accordance with Section 9.7 of the Purchase Agreement
and, in the case of the Seller, shall be delivered as follows:


 


Mike Killgore


17653 Crossing Boulevard


Baton Rouge, LA 70810


 


10.           Counterparts. 
This Agreement may be executed in one or more counterparts, all of which
when taken together shall comprise one instrument.


 


11.           Headings. 
The headings used in this Agreement are for convenience only and are not
to be considered in construing or interpreting this Agreement.


 


[Signature page follows.]


 


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IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed on the day and year first above written.


 


 


	
  BUYER:

  	
  Primoris Services Corporation,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Brian Pratt

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLER:

  	
   

  
	
   

  	
  /s/ Michael Killgore

  



 


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